Friday, April 23, 2010

Sentencing Court has to Explain why it gave Consecutive Terms

State v. Hussein (HSC April 21, 2010)

Background. Hussein pleaded guilty to 39 offenses. This included 8 counts of identity theft in the 2d degree, class B felonies, 4 counts of identity theft in the 3d degree (class Cs), 15 counts of forgery in the 2d degree (class Cs), 1 count of fraudulent use of credit card (a class C), and 7 counts of theft in the 2d degree (class C). Hussein was already serving a ten-year sentence (one ten-year term and two five-year terms concurrently). The State moved for the instance offenses to run consecutively with the one she was already serving. The circuit court granted the motion. Hussein appealed on the grounds that the sentence was unlawful and that her counsel was ineffective for not presenting mitigating factors at sentencing and for failing to file a motion to reduce the sentence. The ICA affirmed.

No "Clear Evidence" that the Sentencing Court Failed to Consider General Sentencing Factors. The sentencing court has wide discretion in imposing a sentence. State v. Kapahea, 111 Hawai'i 267, 278, 141 P.3d 440, 451 (2006). When considering whether to run sentences concurrently or consecutively, the sentencing court must look to a number of factors listed in HRS § 706-606. HRS § 706-668.5(2). "Absent a clear evidence to the contrary, it is presumed that a sentencing court will have considered all factors before imposing concurrent or consecutive terms of imprisonment under HRS § 706-606." State v. Tauiliili, 96 Hawai'i 195, 199, 29 P.3d 914, 918 (2001). Here, the HSC held that because the circuit court heard argument from both parties on the motion for consecutive sentences, took notice of the record, and reviewed the pre-sentence investigation (PSI) report, there was no "clear evidence" to rebut the presumption. Thus, the HSC held that the ICA did not gravely err in affirming the consecutive sentence.

New Rule: Sentencing Court must Explain why it Imposed Consecutive Terms. Generally, "[a]lthough there is no requirement for the sentencing court to state its reasons for imposing sentence, we have urged and strongly recommended that the sentencing court do so[.]" State v. Lau, 73 Haw. 259, 263, 831 P.2d 523, 525 (1992). Relying on a bevy of sources ranging from the ABA proposed standards, to the defendant's right to allocution, see State v. Chow, 77 Hawai'i 241, 250, 883 P.2d 663, 672 (App. 1994), to the reasoning in Oregon v. Ice, 555 U.S. __, 129 S.Ct. 711 (2009), and the law of other jurisdictions, the HSC set forth a new rule in sentencing procedure: the sentencing court "must state its reasons as to why a consecutive sentence rather than a concurrent one was required."

The HSC explained that this new rule serves two purposes. First, sentencing courts now must identify the facts or circumstances that the court considers important. This "express statement, which evinces not merely consideration of the [HRS § 706-606] factors, but recites the specific circumstances that led the court to impose sentences consecutively in a particular case, provides a meaningful rationale to the defendant, the victim, and the public." Second, stating the reasons on the record constitute the court's conclusions drawn from the facts as they pertain to the sentencing factors. This allows, for example, the defendant to be informed that the court has concluded he or she is dangerous to the safety of the public, or poses an unacceptable risk of re-offending. See HRS § 706-606(2). In other words, according to the HSC, stating the reasons "confirm for the defendant, the victim, the public, and the appellate court, that the decision to impose consecutive sentences was deliberate, rational, and fair."

Sorry Folks, not a Retroactive Rule. The HSC made it crystal clear that "circuit courts must state on the record at the time of sentencing the reasons for imposing a consecutive sentence" only after the filing of the judgment in this case.

Not all Sentencing Courts are "Circuit Courts." The final articulation of the new rule states that "circuit courts" are required to state why it imposed a consecutive sentence. But circuit courts are not the only sentencing courts in Hawai'i. What if a district court wanted to impose consecutive sentences? Or how about the family court imposing consecutive sentences for abuse of a family or household member? Perhaps there is no meaningful distinction. But the HSC did not explain why circuit courts were required, but other sentencing courts were not.

Defense Counsel not Ineffective. The HSC rejected Hussein's claims of ineffective assistance of counsel based on the failure to present mitigating factors. According to the HSC, these factors were presented by counsel and were in the PSI report. The sentencing court was made aware of them at the time of the sentencing by reviewing the PSI report. As for the failure to file a motion to reduce the sentence pursuant to Hawai'i Rules of Penal Procedure (HRPP) Rule 35, the HSC stated that "counsel's decision not to file a[n] HRPP Rule 35 motion post-sentencing to present those same factors did not fall outside the range of competence expected of criminal lawyers."

But Remember, HRPP Rule 35 Motions can still be Brought after Appeal. The HSC took this opportunity to clarify the right to file an HRPP Rule 35 motion. "The court may reduce a sentence within 90 days after the sentence is imposed, or within 90 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal." HRPP Rule 35(b). The HSC wanted to clarify that a motion to reduce sentence can still be brought after the judgment was affirmed on appeal. See State v. Rodrigues, 68 Haw. 124, 133 n. 7, 706 P.2d 1293, 1300 n. 7 (1985), State v. Putnam, 93 Hawai'i 362, 365 n. 4, 3 P.3d 1239, 1242 n. 4 (2000), State v. LeVasseur, 1 Haw. App. 19, 29, 613 P.2d 1328, 1335 (1980). Thus, the HSC held that Hussein can still file her own HRPP Rule 35 motion once the judgment in this case is issued.

Chief Justice Moon's Concurrence and Dissent. Chief Justice Moon agreed with the majority that the ICA's sdo should be affirmed. However, he took issue with the court's new requirement. First, requiring the sentencing court to state specific reasons for imposing consecutive sentence terms without overruling State v. Sinagoga, 81 Hawai'i 421, 918 P.2d 228 (App. 1996), which applied the presumption that the sentencing court considered all of the HRS § 706-606 factors before imposing the consecutive sentence, violated the doctrine of stare decisis. Chief Justice Moon wrote that the majority's new rule did not seem to apply to Hussein since it held that she failed to present absence overcoming the presumption of correctness in sentencing. That meant, according to Chief Justice Moon, that the discussion and announcement of the new rule was unnecessary and inapplicable obiter dicta. This only causes confusion because Sinagoga was not expressly overruled. Moreover, according to Chief Justice Moon, the majority exploited the certiorari system in order to promulgate a new rule "that is wholly unnecessary to the disposition of Hussein's conviction or sentence, and attempts to justify its grant of [Hussein's] application by conjuring up an issue surrounding HRPP Rule 35 under the guise of providing clarification." Justice Nakayama joined.

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